By now, you undoubtedly have heard about the U.S. Supreme Court’s decision in U.S. v. Windsor, declaring unconstitutional the Defense of Marriage Act (“DOMA”), which defines marriage as a legal union between one man and one woman. But you may not have considered the effects of this decision on employers’ obligations to provide leave under the Family and Medical Leave Act (“FMLA”).
Under the FMLA, eligible employees may take leave to care for a family member with a serious health condition. A “family member” includes an employee’s spouse, which is defined under the FMLA as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”
Although this definition refers to State law, the U.S. Department of Labor (DOL) had taken the position that it was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife. Accordingly, FMLA leave has not been made available to same-sex spouses.
Now, however, the U.S. Supreme Court’s recent ruling has cleared the way for each state to decide its own definition of “spouse.” Therefore, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, then the employee would be entitled to take FMLA leave to care for his or her same-sex spouse who is suffering from a serious health condition.
It is not clear, however, about employees who live in a state that does not recognize same-sex marriage. It is unclear whether such employees would be entitled to take FMLA leave to care for their same-sex spouse. Currently, Indiana and Kentucky do not recognize same-sex marriage, and Illinois recognizes only same-sex unions, but not marriages.
Hopefully, the DOL will provide guidance to employers on how to deal with this issue in the near future.
About the Author
Mark A. McAnulty, an attorney at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, practices business law and labor and employment law, and is a member of the KDDK litigation and trial services practice team. Licensed to practice in Indiana, Illinois, Kentucky, and Missouri, Mark has represented clients in administrative and judicial proceedings throughout the tri-state area. Mark counsels clients regarding hiring and disciplinary issues, as well as compliance with local, state and federal employment laws. Mark also works with clients in reviewing and drafting employment contracts, non-compete agreements, and employee handbooks; and has advised and represented employers in labor management and union avoidance matters.